How Do I Appeal a Criminal Conviction in SC?
How do you appeal a criminal conviction in SC?
Whether you were convicted in your absence of a speeding ticket or found guilty by a jury in General Sessions Court, you may be able to keep fighting if you have grounds for an appeal or a collateral attack on the conviction.
How do you file an appeal from the lower courts like magistrate court or municipal court? Is an appeal from General Sessions Court different? What happens if you win your appeal?
If you lose your direct appeals, do you have any options left? In some cases, you may be able to file a “collateral attack” – a post-conviction relief (PCR) action in the state courts or a federal habeas petition in the federal courts. What are the rules for collateral attacks on a state court conviction in SC?
Direct Appeals – How to Appeal a Criminal Conviction in SC
How do you appeal a criminal conviction in SC? Regardless of what court your case is in, it begins with a notice of appeal.
The notice of appeal must be filed within a strict deadline – although there are some exceptions, the general rule is that the notice of appeal must be filed within 10 days of the conviction or within 10 days of the court’s ruling on post-trial motions if any were filed.
If you are in doubt about the deadline for filing your notice of appeal, get in touch with a SC criminal appellate lawyer immediately – if you miss the deadline, your right to appeal the conviction may be lost.
What Should I Do Before the Appeal?
You may need to file post-trial motions that 1) give the trial court the opportunity to correct any mistakes made or 2) ensure that your issues are preserved for appeal. In most cases, your time to file the notice of appeal is “tolled” until the trial court issues a decision on your post-trial motions.
Appeals from General Sessions Court
If you have been convicted of a crime in General Sessions Court in SC, you can appeal the conviction to the SC Court of Appeals.
First, you must file the notice of appeal with both the Court of Appeals and General Sessions Court within 10 days of your conviction or the court’s ruling on post-trial motions – where you file the notice of appeal and who you must serve the notice on are found in the SC Appellate Court Rules.
After the notice of appeal has been filed, there are strict deadlines for each stage of the appeal process which includes:
- Ordering the transcript and notifying the court;
- Notifying the court after receipt of the transcript;
- Filing the initial briefs;
- Filing (and sometimes negotiating) the “Designation of Matter to be Included in the Record on Appeal;”
- Filing the Record on Appeal; and
- Filing the final briefs.
You file your brief, the state files an Answer, and then you have an opportunity to file a Reply to respond to any new material raised by the State in their Answer. After all briefs and supporting materials have been filed with the Court of Appeals, your next step is… wait.
The appellate court may schedule oral argument, where the attorneys for each party (or the pro-se appellant) appear at the Court of Appeals and argue their case, or the Court may issue a decision based on the arguments contained in the appellate briefs. Either way, from start to finish, the appeal process can take a year or even several years in some cases.
Appeals from Magistrate or Municipal Court
When you file an appeal from a conviction in magistrate or municipal court, it is filed in the Court of Common Pleas (the “civil” half of SC’s circuit courts – General Sessions is the “criminal” half of SC’s circuit courts).
The rules are very different than if you were appealing from General Sessions Court to the Court of Appeals – there is no formal “appeal, answer, reply” format, and there is often no transcript (although there can be if you brought a court reporter to your trial or had the audio recording transcribed).
The lower court must forward all evidence and a “summary” of the testimony and issues in trial (don’t be surprised when the judge’s “return” reads as if it were the state’s answer brief):
SECTION 18-3-40. Papers shall be filed with clerk of court.
Within ten days after service the magistrate shall file the notice in the office of the clerk of court, together with the record, a statement of all the proceedings in the case, and the testimony taken at the trial as provided in Section 22-3-790.
But what happens if the lower court does not file the return? According to the SC Supreme Court, you are responsible for making sure that the magistrate gets the evidence to the Court of Common Pleas…
Appeals from the Appellate Courts
If you file an appeal from the magistrate or municipal court and your appeal is denied, you can then file another appeal to the SC Court of Appeals, following the process outlined in the SC Appellate Court rules.
If you file an appeal from General Sessions Court (or Common Pleas if the case was originally in the magistrate or municipal court) to the SC Court of Appeals, you can then file a “petition for certiorari” in the SC Supreme Court.
The “petition for cert” asks the SC Supreme Court for permission to hear your case – there will be a “round of briefs” on the cert petition and then a second round of “final briefs” if cert is granted.
If the Supreme Court denies your appeal, in some cases you can file another “petition for cert” with the United States Supreme Court, asking them to hear your appeal from the state supreme court’s decision.
What Happens if I Win a Criminal Appeal in SC?
The end result depends on what issues you are appealing and what happened in the lower courts.
For example, if your appeal is based on the admission of evidence that was prejudicial and the appellate court grants your appeal, the appellate court will most likely remand your case to the lower court for a new trial.
On the other hand, if the appellate court agrees that a directed verdict should have been granted during your trial, then your case is over…
In other cases, an appeal may be based solely on sentencing issues – if you win, your case will be remanded for a new sentencing hearing.
What Happens if I lose a Criminal Appeal in SC?
If you have exhausted your options on direct appeal, your next step may be a “collateral attack” on the conviction – post-conviction relief (PCR) proceedings or a federal habeas petition.
SC Criminal Appeals Lawyer in Charleston
Grant B. Smaldone is a criminal defense attorney in Charleston, SC who handles state and federal criminal defense cases as well as criminal appeals from all courts in SC.
If you’ve been convicted of a crime in SC and believe you have grounds for an appeal, call now at (843) 808-2100 or send a message through our website to set up a free consultation about your case.